32 posts from December 2018

12/17/2018

Can incumbent presidents be indicted? The Office of Legal Counsel has long answered in the negative. Here’s how that office persuasively reasoned in the year 2000:

The Impeachment Judgment Clause provides:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

U.S. Const. art. I, § 3, cl. 7. The textual argument that the criminal prosecution of a person subject to removal by impeachment may not precede conviction by the Senate arises from the reference to the "Party convicted" being liable for "Indictment, Trial, Judgment and Punishment." This textual argument draws support from Alexander Hamilton's discussion of this Clause in The Federalist Nos. 65, 69, and 77, in which he explained that an offender would still be liable to criminal prosecution in the ordinary course of the law after removal by way of impeachment.

Indeed, in Federalist 69 and 77, Alexander Hamilton was clear about the president not being indictable. And here’s the thing: those exact same passages by Hamilton are equally clear that the president cannot pardon himself either. If people now abandon the idea that the president cannot be indicted, they are inadvertently abandoning the idea that the president cannot pardon himself. Such are the wages of abandoning originalism.

It is true that independent prosecutors in the past have sometimes concluded that a sitting president is indictable. However, relying upon the 25th Amendment (ratified in 1967) to determine the meaning of what was ratified in 1789 but never subsequently amended, is not an originalist argument. The “generally held view” is correct: sitting presidents cannot be indicted, and they have to first be impeached and convicted by the Senate. My prediction is that any attempt to indict a sitting president will quickly lead to a self-pardon, and both things would conflict with the original meaning of the Constitution.

Another example of non-originalism potentially backfiring involves the current litigation to incorporate the Excessive Fines Clause against the states. In view of the U.S. Supreme Court’s non-originalist opinion in NFIB v. Sebelius (regarding the constitutionality of the Affordable Care Act), fines are somewhat interchangeable with taxes. I predict that, if the Excessive Fines Clause is incorporated against the states, and NFIB is not rendered obsolete, then eventually federal courts will start striking down state (not to mention federal) taxes as excessive. In other words, the day is probably approaching when a tax will be construed as a fine levied for the offense of having more money than the government wants you to have, and the fine will be struck down under the Excessive Fines Clause.

For this year’s Rosenkranz Debate, we have been asked to debate the question: Lochner v. New York: Still Crazy After All These Years? It is my job to defend the “negative” position. My burden is not to establish that Lochner was correctly decided, but merely that it was not “crazy.” I intend to meet that burden and exceed it. I intend to show how Lochner v. New York was not at all crazy; in fact, it was a reasonable and good decision.

Almost Citizens lays out the tragic story of how the United States denied Puerto Ricans full citizenship following annexation of the island in 1898. As America became an overseas empire, a handful of remarkable Puerto Ricans debated with US legislators, presidents, judges, and others over who was a citizen and what citizenship meant. This struggle caused a fundamental shift in constitution law: away from the post-Civil War regime of citizenship, rights, and statehood and toward doctrines that accommodated racist imperial governance. Erman's gripping account shows how, in the wake of the Spanish-American War, administrators, lawmakers, and presidents together with judges deployed creativity and ambiguity to transform constitutional meaning for a quarter of a century. The result is a history in which the United States and Latin America, Reconstruction and empire, and law and bureaucracy intertwine.

This episode, and the whole sorry history of the Insular Cases' post-Spanish-American War abandonment of the Constitution, is another example of how non-originalism can depart from core constitutional values and reduce or eliminate what should be guaranteed rights.

12/15/2018

Adrian Vermeule (Harvard Law School) has posted The Publius Paradox (forthcoming, Modern Law Review) on SSRN. Here is the abstract:

At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued “[e]stablish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators.” Publius then expands upon this argument in several ways in the Federalist. I suggest that Publius identifies a dynamic or mechanism, the “Publius Paradox,” that warrants great attention: Under particular conditions, excessive weakness of government may become excessive strength. If the bonds of constitutionalism are drawn too tightly, they will be thrown off altogether when circumstances warrant. After illustrating and then analysing this “Publius Paradox,” I will turn briefly to its implications, the main one being that constitutional law should be cast as a loosely-fitting garment — particularly the executive component of the constitution and the scope of executive powers.

12/14/2018

... [M]ost jurists who call themselves originalists do accept stare decisis. Scalia argued that doing so did not undermine his general approach because, he said, every interpretive approach must make room for precedent as an add-on. For reasons I've explored elsewhere, I don't think that answer quite works, but in any event, many contemporary originalists provide a different justification for adhering to precedent. As Justice Kavanaugh put it during the Gamble argument, stare decisis was "part of the original understanding . . . rooted in Article III." Unpacking that a bit, he means that when Article III vests "the judicial power" in federal courts, it vests the traditional decision making tools, including the idea that judges should adhere to stare decisis. Kavanaugh said more or less that during his confirmation hearing as well.

As I understand the position of contemporary originalists who accept stare decisis, they accept stare decisis more or less in the same way as less thoroughgoingly originalists do: in deciding a case, if there's a valid precedent on point you follow it, absent special considerations. Kavanaugh said during Gamble that to overrule a precedent the Court must at least find that it is not just wrong but "grievously wrong, egregiously wrong." That strikes me as a more or less fair account of what the Court's cases have said about stare decisis (though perhaps not what the Court has uniformly done.) But there's a justificatory gap between accepting some version of stare decisis on originalists grounds and accepting the particulars of modern stare decisis doctrine. If the reason for accepting stare decisis in the first place is that it was part of the original understanding, that entails that an originalist jurist accepts the version of stare decisis that was accepted at the Founding, which might differ from the modern doctrine in various respects.

The most sophisticated version of the argument I've just laid out comes from Professors John McGinnis and Michael Rappaport, in advocating what they call "original methods originalism." To be sure, there are various other sorts of reasons why originalist jurists might accept stare decisis to one degree or another and in various circumstances. For an illuminating canvass of the relevant issues, I highly recommend Professor Lawrence Solum's recent essay in Constitutional Commentary reviewing Professor Randy Kozel's book Settled Versus Right: A Theory of Precedent. It's possible that various self-styled originalist judges might accept stare decisis for one or more of the reasons that Professor Solum discusses, but at least Justice Kavanaugh appears to accept it for McGinnis/Rappaport reasons: stare decisis is part of the judicial power of Article III.

But now we come to what strikes me as an important problem: The original understanding of stare decisis is under-determinative on many key questions. Here I'll pose a few of them ...

Alexander Hamilton foresaw it perfectly: impeachments of Presidents are by their nature political proceedings, conducted by political institutions exercising political judgment about the public wrongfulness of a President’s asserted misconduct. And built into that reality is the danger that presidential impeachments can become more about partisan loyalties than the merits of whether a President has engaged in serious wrongful conduct meeting the Constitution’s impeachment standard.

...

Professor Laurence Tribe and attorney Joshua Matz have reinvented a 230-year-old wheel: Hamilton’s insight that impeachments can tend to become mere low-partisan political affairs rather than faithful applications of a principled (if broad) constitutional standard calling for principled (if political) judgment. Ironically, Tribe and Matz not only reinvent this wheel: they demonstrate it in operation.

To End a Presidency: The Power of Impeachment has much to commend it and gets a lot of things right; I will not fail to give those points their due. This is a serious book on a serious constitutional issue, addressed to a popular audience at a serious moment in U.S. history: the explosive presidency of Donald Trump. It has the virtues of very good timing, some good insights, and a powerful case for the constitutional propriety of impeaching President Trump. The discussion of Trump’s wrongdoings, and why he is properly subject to the Constitution’s impeachment standard, is effectively done — carefully crafted, clear, not greatly overstated, and mostly persuasive. Those parts of the book rank among its best features. So too, the book’s treatment of the practical political unlikelihood of impeaching Trump is for the most part well done: Tribe and Matz make a convincing (if demoralizing) case for the political futility of impeachment as a meaningful check on Presidents’ wrongdoing today, a futility attributable to entrenched partisanship.

But the book suffers from two major flaws: First, it is itself rather badly partisan. Second, it is predominantly strategic. The book’s constitutional analysis serves chiefly as prelude to an essentially realpolitik account of what can be done with respect to the goal of removing Trump from office: be realistic about the slim prospects for success, hold your fire, wait for your moment, don’t endanger Democratic seats in Congress, and remember that premature talk of impeachment can backfire. But don’t wait too long, or the world might end.

The first problem is acute and pervasive. While the authors purport to offer a “neutral” set of criteria for presidential impeachments — and purport to decry partisanship — the book is partisan in ways large and small. Not only is Trump deserving of impeachment (a conclusion with which many Republicans might agree, with which I agree, and one that can be defended on politically neutral terms) but so too has nearly every Republican President since Richard Nixon likely engaged in impeachable wrongdoing deserving of at least serious investigation.10×10.Seeinfra pp. 713–14. On the other hand, Bill Clinton’s impeachment for perjury and obstruction of justice — arising out of allegedly false sworn testimony in judicial proceedings and subsequent efforts to cover up that falsity — was “contemptible” (p. xvi) and explainable only as an act of merciless partisan and personal spite (pp. 21, 103, 177, 239). ...

...

In the remainder of this Review, I build on the themes and problems of Tribe and Matz’s analysis to address two larger questions concerning the relationship between the constitutional power of impeachment and the constitutional politics of its application.

First, what is the proper scope of the constitutionalpower of impeachment? What is the full range of meaning, the sweep, of the term “high Crimes and Misdemeanors”? To what types of misconduct by executive (and judicial) officers does it properly extend?

My thesis is that a careful consideration of the original, objective public meaning of the Constitution’s impeachment standard yields the conclusion that the impeachment power is extraordinarily broad, falling just short of plenary. Impeachment was regarded as an integral part of the Constitution’s system of separation of powers — a vital check in the hands of the legislative branch on believed executive and judicial misconduct. The Constitution’s original meaning supports a sweeping power of the two houses of Congress to remove officials for conduct they judge to be: in serious violation of the Constitution; an abuse or misuse of power lawfully possessed; a serious failure to perform the duties of office faithfully and responsibly; a betrayal of the public trust or compromise of vital national interests; corrupt conduct of any of a number of possible varieties; a serious criminal-law offense incompatible with continuance in public office; or other serious non-criminal personal misconduct.

In much of this, I occupy common ground with Tribe and Matz. But the constitutional bounds of the impeachment power extend further than the authors are willing to go. I will take issue, in particular, with their “Clinton Carve-Out” — the ways in which the authors deliberately depart from the Constitution’s original meaning to limit the scope of the impeachment power. The scope of that power is strikingly broad. Not all that it permits necessarily will be congenial to all political points of view or circumstances. But that does not mean we should jigger the meaning of a constitutional grant of power to reduce it to more desirable political proportions.

The second question builds on Hamilton’s concern: Given the breadth of the constitutional power of impeachment, what factors properly inform the constitutional judgment on the part of the House and Senate as to its proper exercise? How does one avoid the problem Hamilton anticipated — that of the political process of impeachment deteriorating into bare partisanship?

Here I will stake out an aggressively naïve position in even sharper disagreement with Tribe and Matz. Far from taking into account such considerations as whether a President retains popular support (pp. 21, 80, 102, 142–45); whether he is judged to pose an ongoing or prospective “danger of grave harm” (pp. 23, 42); the believed domestic or foreign policy implications of impeachment (pp. 100–02); the political or policy advantages or disadvantages of retaining the President (pp. 70–71, 80, 238); the believed partisan motives of one’s political opponents (pp. 70, 177); a tactical assessment of the likelihood that an impeachment will succeed in conviction and the dangers posed by failure (pp. 80, 191–99, 236–38); and who would be the removed President’s successor (p. 149), I submit that the impeachment judgment is properly concerned with none of these things but solely with the question whether the wrongs committed are themselves sufficiently serious wrongs as to warrant exercise of the impeachment power. ...

Also of interest on this topic in the Forum, Nikolas Bowie: High Crimes Without Law (132 Harv. L. Rev. F. 59 (2018)) (arguing, contra both Tribe/Matz and Paulsen, that impeachment for "High Crimes and Misdemeanors" requires an actual crime to have been committed, not merely misconduct in office).

12/12/2018

The U.S. Constitution vests the president with “executive power” and provides that “The President shall be Commander in Chief of the Army and Navy,” while it endows Congress with the power “To declare War.” These provisions have given rise to two major questions about presidential war powers: first, what should be the president’s role in taking the country to war, and, second, what are the president’s powers to direct its conduct. Historian Michael Beschloss’s new book, “Presidents of War,” examines how presidents have responded to each of these questions across two hundred years of U.S. history.

The major argument of this book is that presidents have gradually assumed greater power over decisions to go to war—contrary, in his view, to the constitutional founders’ vision. Although the book does succeed in offering some new insights into how that accretion of that power occurred, its more original contribution lies in its depictions of how presidents have handled and managed the tasks of waging war. Those responsibilities for the management and supervision in the conduct of America’s wars have grown more complex as warfare has evolved—and they, too, look nothing like what the founders expected or might even have imagined. The book also puts an important focus on the continually shifting relationship between war-initiation powers and war-waging powers throughout the course of American history.

The Amazon page for Presidents of War (Crown Pubs. 2018) by Michael Beschloss is here. This is the book description:

From a preeminent presidential historian comes a groundbreaking and often surprising saga of America’s wartime chief executives.

Ten years in the research and writing, Presidents of War is a fresh, magisterial, intimate look at a procession of American leaders as they took the nation into conflict and mobilized their country for victory. It brings us into the room as they make the most difficult decisions that face any President, at times sending hundreds of thousands of American men and women to their deaths.

From James Madison and the War of 1812 to recent times, we see them struggling with Congress, the courts, the press, their own advisors and antiwar protesters; seeking comfort from their spouses, families and friends; and dropping to their knees in prayer. We come to understand how these Presidents were able to withstand the pressures of war—both physically and emotionally—or were broken by them.

Beschloss’s interviews with surviving participants in the drama and his findings in original letters, diaries, once-classified national security documents, and other sources help him to tell this story in a way it has not been told before. Presidents of War combines the sense of being there with the overarching context of two centuries of American history. This important book shows how far we have traveled from the time of our Founders, who tried to constrain presidential power, to our modern day, when a single leader has the potential to launch nuclear weapons that can destroy much of the human race.

Academic recourse to historical practice not only failed to provide discernable constitutional boundaries [of the Senate's advise and consent power] after the death of Justice Scalia, it also jumped the gun. That analysis too quickly assumed that the text of the Constitution provided no useful guidance in evaluating the scope of the Senate’s advice and consent power. This Article revisits that text. It aspires to review comprehensively whether the Appointments Clause, and other pertinent constitutional language, can be harmonized with the Senate’s claim of authority. That review demonstrates that the text of Article II of the Constitution provides a surprising level of guidance in discerning the respective powers of the Senate and the President in the appointment process. It concludes that Article II, Section 2, both understood in whole and in its parts, requires the Senate to consider a President’s nominees. It will posit further that the Constitution’s language implies some modest but important requirements for what Senate consideration must entail.

Specifically, this Article will explain how the 114th Senate’s misreading of its textual authority under the Advice and Consent Clause: (1) compromises the President’s exclusive power to select nominees; (2) contradicts the evident purpose of the Appointments Clause as conveyed by its text (the mandatory and prompt appointment of important governmental functionaries); (3) bypasses the Constitution’s express prescription for how the size of the Court may be altered; (4) overlooks constitutional limitations on the Senate’s rule-making authority; and (5) cripples one of the intended constitutional checks on the Senate’s power over the appointment process.

The analysis will consider other features of the Constitution’s text relating to appointments including the Recess Appointments Clause. It will address the placement of the appointments clauses in Article II and the Constitution’s express endowment of “the executive authority” to the Presidency within that article. These features inform the scope of the Advice and Consent Clause. They demonstrate that the clause cannot be harmonized with the Senate’s claim that the phrase tacitly provides it with such dominant authority over the appointment process.

The textual analysis that follows is consistent with the interpretive framework adopted by the Court in Noel Canning. Although that opinion resolved a set of distinct legal questions, it stands as the Court’s most recent precedent addressing the respective powers of the President and the Senate in the appointment process. Any complete analysis must account for how the Supreme Court might assess the constitutional parameters of a selection process for its own membership.

Importantly, the Court’s reasoning in Noel Canning does not elevate historical practice as the primary arbiter of disputed power. Rather, such history carries “great weight” only when direct constitutional guidance is found neither in the plain language of the Constitution, nor from the purpose conveyed by that language. For this reason, a threshold focus on the semantic meaning of pertinent constitutional text, the central project of this Article, fully conforms to the Court’s most recent approach in evaluating appointment disputes between the branches.

To parallel further the Court’s interpretive framework in Noel Canning, this Article will examine how the Constitution’s original framers, advocates, and opponents understood the distribution of power between the branches set forth in the Appointments Clause. Given the inherent challenges in deriving definitive constitutional meaning from such sources, that record is presented as confirmatory of, rather than necessary to, the textual analysis.

The thrust of this inquiry, however, will confine itself to the semantic meaning, context, and purpose conveyed by the words of the Constitution. To the extent the following textual analysis persuades, the resulting conclusions must carry considerable weight under almost all prevailing interpretive theories. Such theories either (1) posit the construction of text as the only mode of understanding constitutional or statutory law that enforces fidelity to democratic principles; (2) enshrine the text as the best evidence of drafters’ intent; or (3) place the semantic meaning of the text at the apex of a hierarchy of interpretive abstraction. Indeed, the dominant theories of textual and constitutional interpretation diverge only when textual meaning can be reasonably perceived as ambiguous. For this reason, inescapable understandings of text can theoretically support strong claims: even claims of near interpretive unanimity on disputed points of law.

Lastly, the Article will explore some of the implications of its conclusion: that the text of the Constitution requires the Senate to consider the President’s nominees and provide a process for each nominee that could reasonably result in filling the vacancy. And, it will explain why the requirement of Senate consideration matters in practice—even if a controlling Senate faction resolves to ultimately withhold consent from a nominee before any consideration process has occurred.

12/10/2018

Over at Prawfsblawg, Professor Rory Little wrote on December 3: "the respected NACDL (National Association of Criminal Defense Lawyers), which has filed amicus on Timbs’ behalf regarding Excessive Fines, would surely oppose (as would others on all sides of the criminal justice aisle) incorporation of the Grand Jury clause." I am not so sure that NACDL would take that position, because incorporating the grand jury right could still allow states to offer prosecution by information if a person waives the grand jury right. Here’s what Rule 7 of the Federal Rules of Criminal Procedure says:

An offense punishable by imprisonment for more than one year may be prosecuted by information if the defendant—in open court and after being advised of the nature of the charge and of the defendant's rights—waives prosecution by indictment.

Moreover, defendants who live in states that do not offer (and do not want to offer) prosecution by information would probably appreciate changes in their states’ grand jury systems if those systems are required to conform with the Fifth Amendment. For example, when elements enhance or aggravate a crime, they can extend a defendant's prison sentence, and they would have to be submitted to a grand jury under SCOTUS precedent in Blakely v. Washington (2004), even though various state grand jury systems (like Oregon's) do not operate that way now.

Regarding the waiver provision blockquoted above, it has been in the Fed. R. Crim. P. since 1946. Back in 1884 when the U.S. Supreme Court declined to apply the Fifth Amendment’s Grand Jury Clause against the states, the Court apparently had no idea that federal defendants could choose prosecution by information. If such a waiver is legitimate at the federal level per Fed. R. Crim. P., then that might make incorporation of the grand jury right against the states more palatable today than it was in 1884. But, even if waiver is not really legitimate under the Fifth Amendment, incorporation of the grand jury right might still have policy advantages; for example, Professor Richard Myers wrote in 2012: “The ability to waive indictment and proceed via information allows the collusive prosecutor to proceed without the oversight of the public in the form of the grand jury.”

Professor Roger Fairfax describes some of the history of grand jury waiver, in a 2006 article; during the eighteenth and nineteenth centuries, “a federal defendant could not waive or forfeit the right to grand jury indictment for an infamous crime, because without an indictment a federal court had no jurisdiction over a criminal case.” Professor Fairfax therefore questions whether the innovation in 1946 was proper: “The modern rejection of the grand jury’s jurisdictional heritage is largely without basis.”

The Grand Jury Clause of the Fifth Amendment says, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger….” It is possible (as Fairfax suggests) that the Fed. R. Crim. P. is mistaken that this clause is waivable rather than mandatory, and possible that the authors of the Fifth Amendment understood this clause as benefiting the community and the government as well as benefiting the defendant. Even so, incorporating only the “right” aspect of the Grand Jury Clause (which is what the language of the Fourteenth Amendment’s Privileges or Immunities Clause seems to do) would make the grand jury right waivable at the state level even if it is no longer waivable at the federal level.

Incorporation of the Grand Jury Clause might somewhat upset reliance by states upon the Court's decision in 1884 to not incorporate this right. However, the longer that the Court gives states to switch over to compliance with the Fifth Amendment, the weaker their reliance claim would become. As Professor Adrian Vermeule wrote in another context, "nothing prevents judges ... from engaging in ex ante sunsetting, by announcing that governmental powers will lapse on a future date certain."

It has been asserted recently that there are "strong originalist arguments" for abandoning the separate sovereigns doctrine (SSD). E.g., Paul Cassell and Stuart Banner here. I agree that there are strong--indeed, compelling--arguments for rejecting the SSD, but none of them have anything whatsoever to do with original-public-meaning originalism.

First of all, there is absolutely no reason to believe that any word in the Double Jeopardy Clause of the 5th Amendment had an original meaning in 1791 that is any different from its current meaning in 2018. Just a few minutes perusing the Oxford English Dictionary will confirm this fact.

Secondly, it is universally accepted that all of the first eight amendments, at the time of their adoption, were restrictions or limitations on the power of the federal government and not on the power of the States. Therefore, if the Clause had been designed to permit the federal courts to subject a person to double jeopardy after a trial in state court, the Framers would have drafted the Clause to read: "nor shall any person be subject for the same federal offense [or, perhaps more formally, "for the same offense against federal law"] to be twice put in jeopardy of life or limb". Either formulation would clearly leave open the option of federal prosecution for the same offense after state prosecution. Did the Framers fail to note what would have been a very obvious drafting error? I think not.

Finally, Cassell and Banner have argued: "At the Founding and for several decades thereafter, a prosecution by one sovereign was understood to bar a subsequent prosecution by all other sovereigns. Dual sovereignty is thus contrary to the original meaning of the Double Jeopardy Clause." The "thus" in this argument is a non-sequitur. Suppose the SSD had initially been announced by the Court one year, or one month, or even one day after the adoption of the Double Jeopardy Clause. Would one conclude in that case (a) that the original meaning of the Clause had changed, or (b) that the Court had issued its mistaken interpretation even sooner than it did in fact issue it?

I vote for (b) because, no matter when the SSD was first announced by the Court, it cannot change the fact that the Double Jeopardy Clause does not by its terms prohibit federal courts from subjecting people to double jeopardy with regard only to federal offenses. Therefore, unless one accepts that the Framers screwed up royally, one must conclude that the Clause bars federal courts from re-litigating both federal offenses and identical state offenses, and that it is the Court that screwed up royally. The meaning of a constitutional provision cannot rationally turn on the question of how soon after its adoption the Court first misinterpreted that provision; that makes no sense at all.

I have argued (here and here) that original-public-meaning originalism is a dead end. The weakness of the "strong originalist arguments" against SSD only further confirms that conclusion.